In a new development int he largest sexual harassment claim in Australian history, the names of women expected to give evidence of alleged sexual misconduct in the $37 million harassment case again David Jones and its former chief executive have been suppressed until at least tomorrow, after a bid by Kristy Fraser-Kirk’s lawyers in the Federal Court today.
But in the Federal Court today, Justice Geoffrey Flick voiced strong concerns about aspects of Ms Fraser-Kirk’s case, suggesting that alleged conduct by former chief executive Mark McInnes at previous companies could not be used to compound David Jones’s liabilities. He made no order on the matter. The comments by the Judge have left both sides wondering where they stand and made it clear that there will no decisive victory for either side in relation to the litigation. This will almost certainly affect the negotiating position of the parties.
“You say that Mr. McInnes breaches his duty of care to the employees in David Jones, and not only should he pay damages for that breach of duty and punitive damages, but he should, by breaching his duty of care to the employees of David Jones, pay punitive damages – all in the context of his conduct towards employees in other places, including those involved in the process of filing wrongful termination claims?” Justice Flick said.
“You may be right but it doesn’t strike me as self-evidently correct.”
Ms Fraser-Kirk’s lawyer, Rachel Francois, has until 11.30am tomorrow to file two folders of evidence explaining why the other women who will give evidence in the case should have their identities suppressed.
“It’s impossible for us to mitigate this blindfold when we don’t know who these people are,” the lawyer acting for David Jones, Kate Eastman, said.The request by lawyers for Ms Fraser-Kirk comes as the former David Jones publicity co-ordinator is suing Mr McInnes and the retailer in a $37 million case.
Ms Fraser-Kirk alleges that Mr McInnes made unwelcome sexual advances towards her at work functions and that David Jones tolerated a culture of harassment. In what must be close to an admission of guilt, Mr McInnes resigned on June 18 after admitting he had behaved inappropriately towards her. Some critics have also taken aim at the sheer size of the claim. Particularly in relation to the claim against David Jones itself as a company, there appears to be some difficulties in attributing the claim against David Jones in the actual amount claimed.
